An urgent inquiry has been launched into how a jury trial of a migrant collapsed after the sheriff discovered the accused’s interpreter had no qualifications.

Sheriff James Tierney halted the trial of Krzysztof Kucharski on the second day after the freelance interpreter admitted her inexperience in open court, despite reassurances from the interpreting firm that she was suitably qualified. She herself had, at the start of the trial, confirmed that she was able to undertake the work.

The Scottish Court Service (SCS) hired criminology and psychology student Beata Kozlowska from Alpha Translating and Interpreting Services, the country's largest interpreting firm. Kozlowska was to interpret in the case against Kucharski, 24, at Aberdeen Sheriff Court last month, despite not possessing the Diploma in Public Service Interpreting (DPSI), the minimum industry benchmark qualification for linguists working in the public sector.

Kucharski, a car valet from Aberdeen, was alleged to have repeatedly struck his victim, Fryderyk Polak, on the body with a knife or similar instrument to his severe injury on October 12 last year. He has always maintained his innocence.

Kucharski's defence lawyer, Taco Nolf, himself a qualified translator in two foreign languages, formally objected to Kozlowska's handling of key evidence from two Polish witnesses.

The sheriff then investigated the interpreter's qualifications and deserted the case pro loco et tempore ("for the place and time") and discharged the 15-strong jury. Legal sources have indicated it is unlikely the trial could be re-staged.

The event highlighted how the SCS is continuing to use inexperienced foreign students - without the DPSI or any other interpreting qualifications - despite issuing guidelines in June that interpreters should hold the DPSI with the option in Scots law "or an equivalent qualification of similar standard".

The Sunday Herald revealed this year how mistakes are being made that could lead to miscarriages of justice, and that migrants without the DPSI are exploiting a lucrative trade in court interpreting.

Labour's justice spokeman, Richard Baker, said: "If cases are being lost like this due to translation errors then something is seriously wrong with our prosecution system. There is a principle that everyone is entitled to fair representation but from this evidence it appears this is not the case when some translation companies are involved."

In 2006, Nolf was representing in an assault case at Wick Sheriff Court that collapsed because of an error made by one of Alpha's unqualified freelance interpreters.

The lawyer said: "This is the third trial in which I have been involved that has been deserted because of incompetent interpreters, all of them supplied by the same agency."

In a statement, the SCS said that an interpreter with the DPSI plus Scottish law option qualification was "specifically requested in this case", and that Alpha provided a note to the court explaining why it thought the interpreter had other suitable qualifications, which was accepted.

It added: "The matter has been urgently raised with Alpha Translating, and we are awaiting the outcome of their internal inquiry."

Saif Shah, head of interpreting at Alpha, said it followed the guidelines in providing all relevant details about its interpreters. He added: "We are very disappointed about this development and will be investigating the matter internally and with our clients at the SCS."

Friday, 1 August 2008

The National Agreement
document provides key guidance for all parties to criminal investigations and
proceedings on the selection and treatment of interpreters within the Criminal
Justice System. It replaces the National Agreement on Arrangements for the
Attendance of Interpreters in Investigations and Proceedings within the
Criminal Justice System (2002) and Home Office Circular 17/2006. Below, you
will also find the terms and conditions for individuals providing face-to-face
interpreting services at court for defendants and prosecution witnesses.

National Agreement on Arrangements for the
Use of Interpreters, Translators and Language Service Professionals in
Investigations and Proceedings within the Criminal Justice, as revised 2007

SCOTLAND could be seeing miscarriages of justice because sheriff clerks and procurators fiscal are using unqualified linguists as interpreters for migrant defendants and witnesses in the courts, the Sunday Herald can reveal.

The Scottish Court Service and Crown Office are allowing foreign students without the industry benchmark Diploma in Public Service Interpreting (DPSI) to work, through approved agencies, as interpreters in cases ranging from custody disputes to serious assaults, including an alleged rape.

The rising number of migrants appearing before the court has led to a greater need for foreign-language speakers. Interpreters working without the qualification - described by the Chartered Institute of Linguists as "indispensable" - are being used to plug the shortfall.

The Sunday Herald has evidence that fiscals and sheriff clerks are routinely using unqualified freelance linguists provided by Scotland's largest interpreting agency, Alpha Translating and Interpreting. Solicitors, court officials and qualified interpreters have raised fears that mistakes are being made that could lead to wrongful convictions or acquittals.

Edinburgh-based Alpha promises high-quality trained staff and "24-hour coverage, 365 days a year". It provides staff to 50 courts, as well as the Scottish government, the NHS, police forces, local authorities and football clubs.

Two years ago, an assault trial at Wick sheriff court involving a Polish accused and a number of Polish prosecution witnesses collapsed because of mistakes made by an inexperienced interpreter. She did not have the DPSI and had not even started the one-year training course that leads to the diploma.

Aberdeen-based defence lawyer Taco Nolf is so concerned about the quality of some interpreters supplied by Alpha, which is approved by the Scottish Court Service and Crown Office Procurator Fiscal, that he has hired his own interpreter to ensure that evidence is being accurately translated.

Nolf, who represented the defendant, Wojciech Wszolek, in the Wick case, has objected to Alpha's interpreters in court, claiming they didn't possess the proper qualifications, did not hold relevant UK degrees or had questionable English.

He said: "An uncommonly large number of court interpreters come from Alpha. They are often unqualified and incompetent. The girl who sank the Wick trial was still working for them six months later.

"It is not good enough for an agency to say that the interpreter is a native speaker of Polish and that he is fluent in English. It does not make him or her a competent interpreter."

Wszolek said he is still angry about the linguist's errors that led to the case collapsing, as he believes the proceedings left him with a stain on his character.

He was cleared in June 2006 after the Alpha interpreter missed out words in translating a witness statement. Sheriff Gordon Fleetwood halted proceedings and deserted the case after being told by Nolf that the interpreter was "entirely unqualified as a translator" as she did not have the diploma, although she had a master's degree in English.

Nolf said he sympathised with the difficulties the courts face in hiring translators for the growing number of cases involving migrants who can speak only their native language, but that he was shocked that many of those hired lack the necessary skills.

Anna Kocela, 29, the interpreter in the aborted Wick case, is working for Alpha while studying for the DPSI, which she expects to pass next year.

She insists there is no question about her English-speaking ability, but says she is often "embarrassed" by the behaviour of some colleagues at Edinburgh sheriff court, who, she claimed, don't understand the Scottish legal system.

Kocela, a former English teacher in her native Poland, said: "Loads of Polish people come here and say they can speak English, but interpreting and speaking English are totally different.

"There's loads of people who are simply taken from the streets, without any qualifications, that haven't been checked on properly."

She said some colleagues were unprofessional in touting themselves around three or more agencies every day to profit from court work, where rates are typically £11 an hour after the agency's fee has been taken off.

Another interpreter had been working for Alpha recently in Edinburgh District Court with only a degree in English from a Polish university. The 30-year-old told the Sunday Herald she was able to gain the work because of her previous experience as an interpreter with the city council.

However, she appeared confused about whether she had worked in the sheriff or district courts when questioned by the Sunday Herald and incorrectly described the system as being "just like the Polish courts".

Another Pole, who is studying business at university and doesn't hold the DPSI, boasted that he covers anything up to 150 sheriff court cases and could potentially earn £1000 a month.

The 24-year-old worked for Alpha after passing a course in English for business run by an accredited private language specialist, and graduated in business studies from a UK university as part of a student exchange programme.

He revealed that he earned £50 for a two-hour interview at Perth police station on behalf of a Polish alleged rape victim on one of his very first assignments last year after Alpha could find no suitable female interpreters.

The man, who spoke broken English, said: "I wasn't quite sure I could manage the rape case, and knew it would be difficult, but she was fine with me.

"Alpha asked for the DPSI, but my English is good enough and I was about to graduate so they gave me work."

Tayside Police said the rape interview would have been re-arranged if the alleged victim had requested a female interpreter to be present.

Cetty Zambrano of the Chartered Institute of Linguists, which set up a national register of public service interpreters in an attempt to improve the quality of linguists, said the DPSI is an indispensable qualification if people want to work as an interpreter in the public service. But the Institute revealed that in three years, only 150 people have sat the diploma's Scottish legal option exam, which is preferred by the courts and Crown Office.

Zambrano added: "The law courts don't demand the diploma because the national agreement isn't even law. Things need tightening up."

A Crown Office spokesperson said: "The Crown Office and Procurator Fiscal Service interpreting contract states that interpreters should have the Diploma in Public Service Interpreting (Scottish Legal Option) and recent experience of both consecutive and simultaneous interpreting in the court context.

"Where an interpreter does not have the DPSI qualification, it may still be possible and appropriate to use them if, for example, they have other relevant qualifications or the agency can provide us with evidence of the interpreter's recent relevant experience."

Alpha, which refused to say how many of its interpreters are unqualified, said in a statement that while the introduction of tendering contracts had improved standards of court interpreting, the "very nature" of freelance work is "a barrier in its own right" to improving the quality of linguists it uses.

"Without a career path, and the potential for viable income generation, there is no incentive to study," it said.